1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-8-1994

Glass v. Phila. Elec. Co.

Precedential or Non-Precedential:

Docket 92-1896

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 92-1896 

 

 HAROLD GLASS, 

 Appellant 

 v. 

 PHILADELPHIA ELECTRIC COMPANY 

 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 D.C. Civil Docket No. 90-06370 

 

 Argued: July 1, 1993 

 Before: BECKER, ALITO and ROTH, Circuit Judges

 (Opinion Filed: September 8, 1994) 

 

Alice W. Ballard, Esquire (Argued) 

Lynn Malmgren, Esquire 

Samuel & Ballard 

225 South 15th Street, Suite 1700 

Philadelphia, PA 19102 

 Attorneys for Appellant 

Dona S. Kahn, Esquire (Argued) 

Hope A. Comisky, Esquire 

Richard G. Tuttle, Esquire 

Anderson, Kill, Olick & Oshinsky 

1600 Market Street, Suite 1416 
Philadelphia, PA 19103 

 Attorneys for Appellee 

 

 OPINION OF THE COURT 

 

 
ROTH, Circuit Judge: 

 Harold Glass appeals from a jury verdict in favor of 

the Philadelphia Electric Company ("PECO") in his action claiming 

race discrimination, age discrimination, and retaliation in 

employment. Glass alleges that the district court abused its 

discretion when it repeatedly made evidentiary rulings against 

him, excluding his evidence concerning the allegedly racially 

hostile work environment at PECO's Eddystone Plant (the 

"Eddystone evidence") where he worked from 1984 to 1986. Glass 

claims that he was substantially prejudiced by the district 

court's rulings for two reasons. First, while the district court 

excluded Glass's Eddystone evidence, it admitted PECO's evidence 

of Glass's performance at Eddystone. Consequently, Glass was 

prohibited from telling his side of the story. Second, Glass 

claims that the excluded Eddystone evidence is relevant to the 

issue of pretext. 

 We conclude that the district court erred in excluding 

Glass's Eddystone evidence. We find that the error was not 

harmless; hence, we will reverse the district court's judgment 

and remand for a new trial.1

 

1. Glass also appeals on the grounds that the district court's 

instructions to the jury on pretext contained an incorrect legal 

standard. In light of our disposition, we will not reach this 

issue. We will leave to the district court the opportunity, in 

light of the evidence presented on remand, to draw up appropriate 

jury instructions, following the precedents set forth in St. 

Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993), and its 
I. 

 Glass worked at PECO for 23 years before he retired in 

1990.2 During his career, Glass worked in three different 

capacities: clerical (1967 to 1984), technical (1984 to 1986, and 

1989 to 1990), and employee advocate (1986 to 1989). 

 While working full-time, Glass attended school to 

improve his career opportunities. In May 1982, he received an 

Associate Degree in Electrical Electronics Engineering 

Technology. In December 1987, he received an Associate Degree in 

Engineering. In May 1988, he received a Bachelor of Science 

Degree in Industrial and Management Engineering. In December 

1988, he received a Bachelor of Science Degree in Engineering. 

PECO supported Glass's initiatives to obtain higher education by 

covering all of his tuition expenses through their tuition 

reimbursement program. 

 In addition to his full-time work and continuing 

education, Glass was an activist on behalf of PECO employees. 

His involvement with issues of employee and labor relations began 

in 1968, when, along with other minority employees, he helped 

organize the Black Grievance Committee ("BGC") to respond to 

problems of racial fairness at PECO, including inadequate 

(..continued) 

progeny. See, e.g., Hook v. Ernst & Young, F.3d (3d Cir. 

1994). 

2. Glass chose to take early retirement as part of a plan 

offered by PECO during an overall cost cutting program caused by 

the need for economic retrenchment. 
representation of minorities by PECO's uncertified labor 

organization, the Independent Group Association ("IGA"). 

 For 20 years, from 1968 to 1988, Glass served as an 

officer of the BGC. He represented employees in handling routine 

individual grievances before management and negotiated with 

management about employee concerns. 

 In addition, he served as the lead in organizing 

witnesses in three actions against PECO concerning racially 

discriminatory employment practices. In the early 1970's he was 

a chief organizer in a pattern and practice race discrimination 

action filed in federal court against PECO. (Harold Glass, et. 

al. v. PECO). He was also an organizer and primary contact with 

counsel in another federal pattern and practice race 

discrimination suit, Black Grievance Committee, et. al. v. PECO, 

which resulted in a settlement that removed barriers to black 

employees' opportunities, increased employee productivity, 

improved the communications between PECO and its employees, and 

affected supervisory behavior as a result of an affirmative 

action training module. In 1982, Glass filed an unfair labor 

practice charge with the NLRB that resulted in a complaint and 

settlement requiring PECO to recognize the BGC in its employee 

handbook as an alternative source for employees seeking help in 

matters of discrimination or affirmative action. (NLRB v. PECO). 

The settlement also resulted in a creation of the BGC/IGA Liaison 
Representative, the position which Glass held during the years 

1986 through 1989. 

 Throughout his 23 years of employment with PECO, Glass 

received only one performance evaluation which was less than 

fully satisfactory. This occurred while he was serving as a 

junior technical assistant ("JTA") at Eddystone. During that 

time, Glass alleges that he was the target of racial harassment 

by his co-workers. He further suggests that the harassment had a 

negative effect upon his work performance. 

 In 1982, Glass unsuccessfully applied for the position 

of Affirmative Action Officer in Human Resources. In early 1989, 

having obtained two baccalaureate engineering degrees, he sought 

a promotion from the position of JTA to that of Engineer; 

however, he never heard from the three departments to which he 

applied. When he inquired later about the status of these 

applications, he was told that "some of the people were scared to 

take a chance on [him]." App. at 121. In particular, management 

pointed to his poor performance evaluation while at the Eddystone 

Station. App. at 114. 

 In late 1989, Glass applied for posted vacancies of 

Labor Relations Representative (three vacancies) and Affirmative 

Action Staff Assistant (one vacancy). Glass was rejected in both 

cases, in favor of younger white applicants because of 

management's claim that he was not a "team player," App. at 155, 

a reference to management's perceptions of Glass's tenure or 
conduct as an employee advocate. In addition, PECO filled other 

positions, without posting, that Glass would like to have been 

considered for, including that of Affirmative Action Officer, 

which was filled again in 1987, and that of Employee Relations 

Specialist, which was filled once in 1988 and once in 1989, by a 

white candidate in each case. 

 Glass left the position of Liaison Representative in 

early 1989 and returned to technical work as a JTA. He retired 

at age 54 from this position. When he was not selected to fill 

the aforementioned job openings at PECO in 1989 and 1990, Glass 

brought this action against PECO on October 3, 1990, claiming 

that he was discriminated against on the basis of his race and 

age and in retaliation for his activities as a minority advocate. 

 The District Court for the Eastern District of 

Pennsylvania had subject matter jurisdiction pursuant to 28 

U.S.C. §§ 1331 and 1334 over this claim which alleges violations 

of the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Civil 

Rights Act of 1964, 42 U.S.C. § 2000, et seq.; and the Age 

Discrimination in Employment Act, 29 U.S.C. § 621, et seq. The 

district court exercised supplemental jurisdiction over claims 

brought under the Pennsylvania Human Relations Act, 43 P.S. § 

951, et seq. We have jurisdiction over Glass's appeal pursuant 

to 28 U.S.C. § 1291. 

II. 
 We review pre-trial and trial court rulings concerning 

the admission or evidence for an abuse of discretion. In re 

Japanese Electronic Products, 723 F. 2d 238, 260 (3d Cir. 1983), 

rev'd on other grounds, Matsushita Electronic Industrial Co., 

Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). Similarly, we 

review the district court's decision to include or exclude 

evidence arising under the Federal Rules of Evidence 401, 402 and 

403 for an abuse of discretion. Pfeiffer v. Marion Center Area 

School District, 917 F.2d 779, 781-82 (3d Cir. 1990). We have 

explained that "error may not be predicated upon a ruling which 

admits or excludes evidence unless a substantial right of the 

party is affected . . . ." Linkstrom v. Golden T. Farms, 883 

F.2d 269, 269 (3d Cir. 1989); Fed. R. Evid. 103(a). In reviewing 

evidentiary rulings, if we find nonconstitutional error in a 

civil suit, such error is harmless only "if it is highly probable 

that the error did not affect the outcome of the case." Lockhart 

v. Westinghouse Credit Corp., 879 F.2d 43, 53, 59 (3d Cir. 1989). 

A. 

 We note at the outset that the trial court admitted 

PECO's evidence of Glass's conduct at Eddystone and excluded 

Glass's Eddystone evidence without articulating a balance between 

the probative value and the prejudicial effect of the evidence as 

required by Fed. R. Evid. 4033 and the jurisprudence of this 

 

3. Fed. R. Evid. 403 states: 

 Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the 

danger of unfair prejudice, confusion of the issues, or 
Court. See, e.g., United States v. Downing, 753 F.2d 1224, 1243 

(3d Cir. 1985) (declining to decide the Rule 403 question where 

the district court neither mentioned Rule 403 on the record nor 

"conducted the balancing required by that rule"); United States 

v. Long, 574 F.2d 761, 770 (3d Cir.) (Adams, concurring) (the 

record should reflect, at least minimally, that balancing 

occurred), cert. denied, 439 U.S. 985 (1978). Therefore, it is 

not clear for purposes of our review that the district court 

actually excluded any evidence under Rule 403 despite the 

district court's language suggesting that its rulings involve 

some Rule 403 concerns, i.e.: "Let's not relitigate the 

Eddystone matter. I'll sustain the objection." App. at 358. 

 PECO contends that the trial court conducted a Rule 403 

balancing when it granted PECO's pre-trial motion in limine. As 

PECO had requested, the district court ordered that no evidence 

would be admitted at trial in two categories: 1) pre-May 1989 

evidence about alleged discriminatory treatment of Glass by PECO 

that predates the statutory period covered by Glass's current 

claims, and 2) evidence of prior settlement agreements or consent 

decrees entered into by PECO. While the district court's order 

does not give any reasons for granting PECO's motion, Glass's 

motion in opposition to PECO's motion in limine appears to invoke 

Rule 403 by opposing PECO's claims that the evidence "is 

(..continued) 

misleading the jury, or by considerations of undue 

delay, waste of time, or needless presentation of 

cumulative evidence. 
prejudicial, confusing and will promote delay in the 

proceedings." App. at 3. 

 If we consider PECO's motion in limine as the 

equivalent of a specific Rule 403 objection to the Eddystone 

evidence, then "we must confront the trial court's failure to 

articulate its balance between the probative value and the 

prejudicial effect of the evidence in one of two ways: either we 

decide the trial court implicitly performed the required balance; 

or, if we decide the trial court did not, we undertake to perform 

the balance ourselves." United States v. Eufrasio, 935 F.2d 553, 

572 (3d Cir. 1991) (citation omitted). Independent of either 

method, "the trial court's failure to expressly articulate a Rule 

403 balance when faced with a Rule 403 objection, would not be 

reversible error per se." Id. 

 If, on the other hand, we decide that PECO's motion in

limine did not constitute a specific Rule 403 objection to the 

admission of the Eddystone evidence, then the trial court was not 

required to strike a Rule 403 balance on the record sua sponte.

4 

We note that PECO's and Glass's understanding of what the trial 

court did is significant to our analysis. Both parties 

 

4. "Since the 'specific' objection requirement of Fed. R. Evid. 

103(a) was not complied with, the trial judge was not required to 

deal with Rule 403. . . . [T]he dynamics of trial do not always 

permit a Rule 403 analysis in . . . detail . . .. [T]o require a 

detailed balancing statement in each and every case is 

unrealistic. . . . [W]here [a] Rule 403 [objection] is not 

invoked, the trial judge's balancing will be subsumed in his 

ruling." United States v. Long, 574 F.2d 761, 766 (3d Cir.), 

cert. denied, 439 U.S. 985 (1978) (emphasis added). 
communicated at oral argument their belief that the trial judge 

based his evidentiary rulings on Rule 403. 

 We determine, however, that we do not in fact need to 

base our decision here on a resolution of whether or not PECO's 

pre-trial motion in limine constituted a Rule 403 objection.5 

Reviewing the trial transcript, including, on the one hand, the 

references by the defense to Glass's performance at Eddystone and 

the effect his poor performance rating there had on his later 

attempts at promotion and, on the other hand, the proffers made 

by Glass at those times as to what he would show concerning the 

impact of the racial harassment on his performance and his 

performance evaluation, we conclude that the district court's 

repeated refusal to grant Glass's attempts to admit the Eddystone 

evidence was an abuse of discretion. 

B. 

 On the second day of trial at a sidebar conference, the 

court ruled that evidence of the allegedly hostile racial 

environment at Eddystone in the mid-1980's was inadmissible. 

Glass's counsel made the following offer of proof: 

 BALLARD: If permitted, I would also offer evidence of 

the environment Mr. Glass encountered at Eddystone 

Station when he went there as a junior technical 

assistant in 1984 to show why he had difficulty 

 

5. Indeed, it may be difficult for the district court at the 

pre-trial stage to make an adequate assessment of the Rule 403 

balancing. See In re Paoli R.R. Yard PCB Litigation, 916 F.2d 

829, 859-60 (3d Cir. 1990) ("[I]n order to exclude evidence under 

Rule 403 at the pretrial stage, a court must have a record 

complete enough on the point at issue to be considered a virtual 

surrogate for a trial record.") 
performing there, to show that he was the victim of a 

discriminatory and harassing environment there. And I 

understand Your Judge's ruling of two -- Your Honor's 

ruling of two days ago to say that I should stay away 

from that as well. 

 THE COURT: That's correct. 

App. at 66. Glass contends that, if the Eddystone evidence had 

been admitted, it would have shown that the more senior technical 

employees posted hostile and demeaning images about him on the 

plant premises and that he was the subject of racially derogatory 

remarks. It would also have shown that the training and 

performance of junior technical assistants depended directly on 

the goodwill and support of the more experienced technical 

assistants and senior technical assistants who train and evaluate 

the junior technical assistants. Glass maintains that his 

behavior and his opportunity to learn and perform effectively was 

impaired by the hostile environment in which he worked. 

 The trial court repeatedly sustained PECO's objections 

to Glass's attempts to introduce evidence concerning these 

events. Glass testified that his activities on behalf of 

employees and as BGC/IGA Representative qualified him for the 

position of Labor Relations Representative. The requirements for 

the job of Labor Relations Representative were: a "bachelor's 

degree in human resource management or labor relations, or 

significant labor relations work experience or equivalent 

combination of work experience and successful completion of 

college courses covering such areas as labor relations, general 
accounting, managerial accounting, and/or compensation and 

benefits." Glass had both an appropriate college degree (B.S., 

Industrial and Management Engineering) and the relevant 

coursework. He also had equivalent work experience developing 

and handling employee grievances, negotiating with management and 

settling major lawsuits related to employee relations and labor 

law. His academic background and his work experience qualified 

him for the job and afforded him an interview with James Lange, 

Director of Labor Relations. 

 Even though Glass had met the education requirements 

and had the experiential background in labor relations, a 

qualification characterized as "preferred" on the job posting, he 

was rejected in favor of younger, white candidates, none of whom 

had comparable employee or labor relations experience. Lange 

testified that one reason he rejected Glass was his poor 

performance at Eddystone. Glass attempted to pursue the extent 

of Lange's knowledge of the Eddystone events on crossexamination: 

 Q No, my question is the previous 

performance that you identified as one of the 

reasons why you turned him down. ... 

 A Uh-huh. 

 Q ... that was his performance at Eddystone, 

isn't it? 

 A In part. 

 Q Now, did you do any investigation 

regarding his performance at Eddystone to see 
whether he had been the victim of unfair 

treatment there? 

 A No, I did not. 

 Q Did he tell you that he had been the 

victim of unfair treatment there? 

 A Yes, he had. 

 Q Did he tell you that people had posted 

hostile pictures of him on the wall ... 

 MS. KAHN: Objection, ... 

 Q ... when he was ... 

 MS. KAHN: ... Your Honor. 

 Q ... at Eddystone? 

 THE COURT: Let's not relitigate the 

Eddystone matter. I -- I'll sustain the 

objection. 

App. at 357-58. 

 PECO also claimed that Glass was rejected because of 

poor interpersonal skills, the focus of the testimony of Malcolm 

Riley, Glass's boss at Eddystone. Riley testified about Glass's 

role as BGC representative while at Eddystone during the same 

period. Glass was not permitted to cross-examine Malcolm Riley 

about the relationship between the hostile work environment and 

Riley's judgment that Glass's behavior during this time evidenced 

poor interpersonal skills: 

 Q Do you remember a time, Mr. Riley, when 

somebody at Eddystone Station put some 

pictures up on the board of Harold Glass? 

 MS. KAHN: Objection, Your Honor. 

Objection, Your Honor. This is constantly 
brought into the case. It was ruled that it 

was not relevant. 

 THE COURT: I agree. Now, let me 

see counsel one moment at sidebar. 

App. at 404. 

 Glass was similarly denied the opportunity to introduce 

evidence of the circumstances at Eddystone in the context of his 

claim that PECO's refusal to hire him as an engineer in 1989-90 

was discriminatory. Alvin Weigand, head of the engineering 

division in which Glass worked, testified that he told Glass that 

a promotion to engineer would be conditioned on his 

satisfactorily performing in a JTA position for two years. Glass 

denied having ever been told that the probationary period was for 

two years but instead understood that a waiting period of 

indefinite duration was being imposed on him. In any event, a 

probationary period, whether two years or open-ended, was not 

applied to any other degreed candidate for an engineering job. 

Glass declined the job. 

 At trial, Weigand testified that he imposed the 

probationary period because of Glass's poor performance while at 

Eddystone. Glass attempted to pursue the extent of Weigand's 

knowledge of the Eddystone events on cross-examination: 

 Q Now, you said that you were aware of his 

past performance problems, in the technical 

field. How did you know what kinds of 

problems you thought he had had? Sorry. 

That's a terrible question. What, quote, 

performance problems, close quote, were you 

aware of? 
 A I was aware that he was not receiving 

satisfactory performance appraisals in his 

JTA job at Eddystone Station, and I was aware 

that he was not being promoted to TA which is 

the normal progression, and that was in my 

organization, down a couple levels. 

 Q Were you aware that he had had difficulty 

on the job at Eddystone of a personal nature 

in connection with the other employees? 

 MS. KAHN: Objection, Your honor. 

Again, we're going back into history which 

was ruled irrelevant. 

 THE COURT: The objection's sustained. 

App. at 426. With PECO's objection sustained, Glass was 

repeatedly unable to introduce any evidence concerning the 

racially hostile environment at Eddystone station, management's 

failure to take corrective action when it learned of the 

harassment, or the connection between these incidents and his 

negative performance evaluation. 

 We find that the district court abused its discretion 

for the following reasons: First, in the federal courts, the 

scope of permissible cross-examination is set forth in Fed. R. 

Evid. 611(b): "Cross-examination should be limited to the 

subject matter of the direct examination and matters affecting 

the credibility of the witness." See also United States v. 

Sullivan, 803 F.2d 87, 90 (3d Cir. 1986). The district court 

erred by allowing PECO's witnesses, Lange, Riley and Weigand, to 

testify about their knowledge of the events at Eddystone but then 
not allowing Glass to cross-examine those witnesses as to the 

basis or extent of their knowledge. 

 Second, we find that the Eddystone evidence is 

independently relevant to a key aspect of the case: whether one 

of the principal non-discriminatory reasons asserted by PECO for 

its actions was in fact a pretext for age or race discrimination. 

In St. Mary's Honor Center v. Hicks, the Supreme Court confirmed 

that, under the well-established burden-shifting formula of 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas 

Dept. of Community Affairs v. Burdine, 450 U.S. 253 (1981), in a 

Title VII case alleging employment discrimination: 

 First, the plaintiff has the burden of 

proving by a preponderance of the evidence a 

prima facie case of discrimination. Second, 

if the plaintiff succeeds in proving the 

prima facie case, the burden shifts to the 

defendant to articulate some legitimate, nondiscriminatory reason for the employee's 

rejection. Third, should the defendant carry 

this burden, the plaintiff must then have an 

opportunity to prove by a preponderance of 

the evidence that the legitimate reasons 

offered by the defendant were not his true 

reasons, but were a pretext for 

discrimination. 

Burdine, 450 U.S. at 252-53; see St. Mary's Honor Center, 113 

S.Ct. at 2749 (reaffirming "our repeated admonition that the 

Title VII plaintiff at all times bears the 'ultimate burden of 

persuasion'" of intentional discrimination). This formula 

applies equally to claims of age discrimination in employment 

under ADEA. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 
897 (3d Cir. 1987) (in banc). Since Glass had introduced 

sufficient evidence to establish a prima facie case and PECO had 

asserted several nondiscriminatory reasons for its actions, 

including Glass's poor performance at Eddystone, the Eddystone 

evidence is relevant and should have been admitted to help Glass 

meet his burden of proving intentional discrimination as Glass's 

counsel proposed in her proffer on three occasions during the 

trial. The district court's rejection of Glass's proffers was 

error. The preclusion of the evidence deprived Glass of a full 

hearing on the issue of pretext and was, therefore, not harmless 

error; rather, it is highly probable that the evidentiary rulings 

affected the outcome of the case. Lockhart v. Westinghouse 

Credit Corp., 879 F.2d 43, 53 (3d Cir. 1989).6

 Our decision is buttressed by the judicial 

inhospitability to evidentiary exclusions in discrimination 

cases. The Eighth Circuit explained in reversing similar 

evidentiary exclusions in an employment discrimination suit: 

 The effects of blanket evidentiary exclusions 

can be especially damaging in employment 

discrimination cases, in which plaintiffs 

must face the difficult task of persuading 

the fact-finder to disbelieve an employer's 

account of his own motives. 

 

6. A Rule 403 balancing, if requested, would be a part of any 

ruling on a particular aspect of the Eddystone evidence, as such 

evidence might be relevant to the issue of pretext. We conclude, 

however, that such a balancing of particular items of Eddystone 

evidence would be better made on remand by the trial judge, as 

testimony is proffered, than it would by us, out of context, at 

this stage of the proceedings. 
 . . . 

 Circumstantial proof of discrimination 

typically includes unflattering testimony 

about the employer's history and work 

practices -- evidence which in other kinds of 

cases may well unfairly prejudice the jury 

against the defendant. In discrimination 

cases, however, such background evidence may 

be critical for jury's assessment of whether 

a given employer was more likely than not to 

have acted from an unlawful motive. 

Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 

1984). 

 Citing this passage from Estes, the Eighth Circuit in 

Hawkins v. Hennepin Technical Center, 900 F.2d 153, 155 (8th Cir. 

1990), reversed summary judgment for the defendant in a disparate 

treatment sex discrimination case holding that the district court 

abused its discretion in barring the plaintiff from introducing 

evidence of prior sexual harassment of herself and other 

employees of the defendant. The magistrate judge had determined 

that any evidence, beyond the fact that the plaintiff had filed 

certain harassment complaints against the defendant in the past, 

was not relevant to the plaintiff's claim that she suffered 

disadvantageous employment decisions as a result of her gender 

and in retaliation for complaints of sexual harassment made by 

her while employed by the defendant. 

 The court of appeals disagreed, finding that evidence 

of the nature of the harassment complaints and the defendant's 

disposition of those complaints was highly relevant to the 

plaintiff's case because "an atmosphere of condoned sexual 
harassment in a workplace increases the likelihood of retaliation 

for complaints in individual cases." 900 F.2d 156. See also

Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir. 

1986) (affirming district court's decision to admit plaintiff's 

evidence of harassment against other black workers in case 

alleging racially discriminatory discharge because "evidence was 

relevant both in showing that Allis Chalmers condoned racial 

harassment by its workers and in rebutting Allis Chalmers' 

defense that it had fired Hunter for cause."). 

III. 

 For the foregoing reasons, we conclude that the 

district court abused its discretion by repeatedly barring Glass 

at trial from introducing evidence about the hostile work 

environment at Eddystone and from eliciting testimony of how it 

related to Glass's performance, which, according to PECO, had 

operated to defeat his candidacy for the positions of Labor 

Relations Representative and Engineer. We will, therefore, 

reverse the district court's judgment and remand this case for a 

new trial. 

Glass v. Philadelphia Electric

No. 92-1896 

ALITO, Circuit Judge, dissenting: 
 Harold Glass, who was employed for many years by the 

Philadelphia Electric Company ("PECO"), sued his former employer 

for allegedly discriminating against him based on race and age 

and for allegedly retaliating against him because of his pursuit 

of other discrimination claims.7 His case was tried before a 

jury, and the jury was requested to answer special 

interrogatories that asked whether PECO had discriminated against 

the plaintiff on the basis of race or age or had illegally 

retaliated against him when it failed to promote him to a variety 

of positions that were filled in the late 1980's. The jury found 

no such discrimination or retaliation, and the court entered 

judgment for PECO. 

 On appeal, the plaintiff contended, among other things, 

that the district court abused its discretion under Fed. R. Evid. 

403 by excluding evidence that he had been subjected to a 

racially hostile environment when he worked at PECO's Eddystone 

Generating Station in the mid-1980's. The plaintiff argued that 

this evidence was relevant to show that PECO's asserted reasons 

for denying the promotions were pretextual and that this evidence 

 

7. He asserted claims under Title VII of the Civil Rights Act of 

1964, 42 U.S.C. § 2000e et seq.; the Age Discrimination in 

Employment Act, 29 U.S.C. § 623; 42 U.S.C. § 1981; and the 

Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. 
should not have been excluded under Rule 403. See Appellant's 

Br. at 17-26. The majority agrees with the plaintiff's argument 

and therefore reverses the judgment of the district court and 

remands for a new trial. In doing so, the majority makes little 

effort to explain why the excluded evidence had probative value 

or to address the factors weighing against exclusion. In my 

view, when both sides of the Rule 403 balance are carefully 

considered and the proper standard of appellate review is 

applied, the district court's rulings under Fed. R. Evid. 403 

must be sustained. Moreover, even if those rulings were 

incorrect, they were harmless with respect to several of the 

positions at issue. For these reasons, I dissent. 

I. 

 Before addressing the merits of the district court's 

evidentiary rulings, I will briefly supplement the procedural 

history set out in the majority opinion. Prior to trial, PECO 

filed a motion in limine seeking to preclude the plaintiff from 

introducing evidence of discriminatory acts that allegedly 

occurred before "the statutory period covered by the charge 

[Glass] filed with the Pennsylvania Human Relations Commission 

and the Equal Employment Opportunity Commission. . . ." 

Defendant's Motion In Limine at 1. PECO argued that this 

evidence was not relevant under Fed. R. Evid. 401 and that it 
should in any event be excluded under Fed. R. Evid. 403. PECO 

stated: 

 [E]ven if this Court were to conclude that 

some or all of this evidence might be 

marginally relevant and otherwise admissible, 

if it is introduced, the Court will be forced 

to preside over -- and defendants will be 

forced to defend against -- numerous 

collateral matters to be tried within the 

main trial. These mini-trials would concern 

actions by decision-makers who were not 

involved at all in any of the action in the 

fall and winter of 1989 that Glass is 

challenging in this case. In many instances, 

they would concern events which occurred many 

years before the events actually in 

controversy here. Furthermore, by admitting 

this evidence, the jury will hear an 

overabundance of tangential, collateral and 

irrelevant issues which will undoubtedly 

confuse its consideration of the true issues 

in this case. There would be at least 

several extra days of trial time and 

ultimately, should this evidence be admitted, 

defendant will be unfairly prejudiced in its 

defense. 

Memorandum of Law in Support of Defendant's Motion In Limine at 

4-5. See also id. at 15-16. 

 The plaintiff then filed a lengthy memorandum in 

opposition to this motion. In this memorandum, the plaintiff 

stated that he "propose[d] to introduce evidence of his 

employment history, including his activities as an employee 

representative, to prove he was qualified for the positions he 

now claims he was denied because of his age and race." App. 3-4. 

After describing the plaintiff's work as a officer of the Black 

Grievance Committee, the memorandum stated: 
 [T]he story of Mr. Glass' activism directly 

supports his contention that he was qualified 

for the jobs he was denied, and that despite 

these qualifications, he was rejected for 

pretextual reasons. . . . 

 In short, Mr. Glass' pre-1989 evidence 

is relevant for the purpose of showing that 

he was particularly qualified for the 1989-

1990 positions, and that this entire history 

of activism in employee and labor relations 

is consistent with a promotion into one of 

them. 

App. 9-10. The memo also stated: 

 [I]t is important to note what Plaintiff does 

not intend with regard to pre-1989 evidence. 

Plaintiff Glass does not intend to make 

actionable any of Defendant's promotional 

decisions which predate the limitations 

period in this action. Nor does Plaintiff 

intend to prove the existence of a pattern or 

practice of discrimination. . . . 

App. 8-9. Not once in this memo did the plaintiff state that he 

proposed to introduce evidence that he was subjected to racial 

harassment or a racially hostile work environment during the 

period when he worked at PECO's Eddystone station (from 1984 to 

1986) or at any other time.8 

 PECO next filed a reply memorandum. PECO argued that 

the plaintiff's pre-1989 experience representing other employees 

was not relevant with respect to several of the positions to 

 

8. 8. Nor was harassment or a racially hostile environment at 

Eddystone mentioned in the plaintiff's affidavit in opposition to 

the motion in limine. 
which he claimed he should have been promoted. However, with 

respect to some other positions -- the position of Affirmative 

Action Staff Assistant and three positions as a Labor Relations 

Representative -- PECO offered "to stipulate that plaintiff's 

activities on behalf of other employees provided him with the 

experience to meet certain criteria set forth in the job 

requisitions" for those positions. Rely Memorandum of Law in 

Support of Defendant's Motion In Limine at 7. 

 The plaintiff then filed a surreply objecting to the 

proposed stipulation because it would deprive him of "the 

opportunity to present the depth and texture of those 

qualifications to a jury." App. 16. This surreply, like the 

plaintiff's prior memorandum, made absolutely no mention of 

racial harassment or a racially hostile atmosphere at Eddystone 

or anywhere else. 

 After receiving these submissions, the district court, 

a few days before trial, entered an order granting PECO's motion. 

Because the district court did not explain the basis for its 

ruling, it is unclear whether the court held that the evidence of 

pre-1989 events was not relevant or whether the court concluded 

that the evidence should be excluded under Rule 403. In any 

event, however, I do not think that the plaintiff can attack this 

ruling on the ground that it improperly precluded him from 

proving that he had been subjected to racial harassment at 

Eddystone prior to 1989. Having explained to the district court 
precisely what evidence of pre-1989 events he wanted to introduce 

and precisely why he wanted to introduce that evidence, and 

having said nothing about evidence of racial harassment or a 

racially hostile atmosphere at Eddystone or anywhere else, the 

plaintiff cannot, in my view, argue that the district court erred 

in failing to admit such evidence. See Fed. R. Evid. 103(a)(2); 

Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342, 1352-

53 (3d Cir.), cert. denied, 493 U.S. 901 (1989). 

 When the trial began two days after the district 

court's order granting the motion in limine had been entered and 

sent to the parties, the plaintiff's counsel made an oral offer 

of proof, and the following colloquy occurred: 

 MS. BALLARD [plaintiff's counsel]: If 

permitted, I would also offer evidence of the 

environment Mr. Glass encountered at 

Eddystone Station when he went there as a 

junior technical assistant in 1984 to show 

why he had difficulty performing there, to 

show that he was the victim of a 

discriminatory and harassing environment 

there. And I understand your Judge's ruling 

of two -- Your Honor's ruling of two days ago 

to say that I should stay away from that as 

well. 

 THE COURT: That's correct. 

 MS. BALLARD: All right. And that would 

include the pictures that were placed on the 

wall that . . . 

 THE COURT: Right. 

 MS. BALLARD: . . . degraded Mr. Glass' 

personality. 

 THE COURT: Right. All these rulings 

are made without prejudice to your renewing 
them if at a later time it turns out from the 

testimony that it might be appropriate to 

bring that in. But on your case in chief, 

I've ruled that it's not admissible at this 

time. 

App. 66-67. 

 While this oral offer of proof, unlike the plaintiff's 

prior memoranda, referred to evidence of racial harassment at 

Eddystone, plaintiff's counsel still did not explain how proof of 

this harassment, apparently by co-workers,9 was relevant to prove 

that PECO officials had discriminated or retaliated against the 

plaintiff when they denied him certain promotions years later. 

In particular, plaintiff's counsel did not claim that this 

evidence was relevant to show that PECO's reasons for denying the 

plaintiff these promotions were pretextual. Thus, if I had been 

the trial judge, I am not sure that I would have grasped, based 

on the plaintiff's prior memoranda and this short exchange, that 

the plaintiff was proposing to prove the harassment at Eddystone 

for the purpose of showing pretext. But even if it is assumed 

that the plaintiff's oral offer of proof was sufficient to convey 

this point, the fact remains that the trial judge did not 

categorically bar proof of the events at Eddystone. On the 

contrary, the judge expressly stated that his rulings on the 

motion in limine were "made without prejudice to the [the 

plaintiff's] renewing them if at a later time it turn[ed] out 

 

9. See App. 405-06. 
from the testimony that it might be appropriate to bring that 

in." App. 67. Accordingly, I do not think that the cases cited 

by the majority concerning "blanket evidentiary exclusions" (see

Maj. Typescript at 16 (quoting Estes v. Dick Smith Ford, Inc., 

856 F.2d 1097, 1103 (8th Cir. 1984)) are at all pertinent.10 

Instead, I think that it was incumbent on the plaintiff to renew 

his request to admit evidence concerning events at Eddystone as 

the trial developed. The plaintiff did so; the district court 

then ruled; and it is these specific rulings, in my view, that we 

must review. 

 The exchanges that led to these specific rulings are 

quoted in the opinion of the court (see Maj. Typescript at 11-

14), and therefore I will not repeat them here. I will, however, 

note two salient features of these exchanges. First, at no point 

did the plaintiff's attorney refer to the concept of "pretext" or 

provide a clear explanation of the relevance of the Eddystone 

evidence. Second, at no point did the trial judge refer to Rule 

403 or provide a clear explanation of the basis of his rulings 

 

10. The two cases discussed by the majority -- Estes and 

Hawkins v. Hennepin Technical Center, 900 F.2d 153, 155 (8th 

Cir.) cert. denied, 498 U.S. 854 (1990), -- are readily 

distinguishable from the current case on at least two important 

grounds. First, those cases concern pretrial orders 

categorically prohibiting the admission of certain evidence, 

whereas in this case the trial judge expressly stated that his 

pretrial order was made without prejudice to the plaintiff's 

attempt to admit the evidence at a later point. Second, in Estes

and Hawkins, unlike this case, introduction of the evidence in 

question was sought for the purpose of proving a pattern of 

discrimination. 
excluding the evidence in question. Faced with this ambiguous 

record, I think it is appropriate to give both sides the benefit 

of the doubt. Consequently, I construe the remarks of 

plaintiff's counsel as having preserved the argument that the 

Eddystone evidence was relevant to show pretext, and (like 

counsel for both parties11) I construe the district court's 

ruling as having been based on an implicit balancing pursuant to 

Rule 403. See United States v. Eufrasio, 935 F.2d 553, 572 (3d 

Cir.), cert. denied, 112 S. Ct. 340 (1991). In this regard, I 

note that the district court did say that it did not want to 

"relitigate the Eddystone matter" (App. 358), and I interpret 

this reference as essentially accepting PECO's argument in favor 

of exclusion under Rule 403. If this interpretation of the 

district court's reasoning is too generous, it is no more 

generous than my reading of the plaintiff's explanation of the 

relevance of the Eddystone evidence. Thus, based on these 

interpretations of the record, it seems to me that the issue 

before us is the following: did the district court commit 

reversible error in concluding that the Eddystone evidence's 

probative value for the purpose of proving pretext was 

substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by 

considerations of undue delay and waste of time? 

See Fed. R. Evid. 403. I therefore turn to this question. 

 

11. See Appellant's Br. at 15; oral argument Tr. at 17. 
II. 

 According to our precedents, "[a] trial judge is given 

`very substantial discretion' when striking a Rule 403 balance." 

Eufrasio, 935 F.2d at 572. A trial judge's ruling under Rule 403 

may be reversed only if the judge committed an abuse of 

discretion. Id. Indeed, we have held that "a trial judge's 

decision to admit or exclude evidence under Fed. R. Evid. 403 may 

not be reversed unless it is `arbitrary and irrational.'" Bhaya 

v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990), 

cert. denied, 501 U.S. 1217 (1991), (quoting United States v. 

DePeri, 778 F.2d 963, 973-74 (3d Cir. 1985), cert. denied, 475 

U.S. 1110 and 476 U.S. 1159 (1986)); see also United States v. 

Friedland, 660 F.2d 919, 929 (3d Cir. 1981), cert. denied, 456 

U.S. 989 (1982); United States v. Long, 574 F.2d 761, 767 (3d 

Cir.), cert. denied, 439 U.S. 985 (1978). We have also observed: 

 If judicial self-restraint is ever desirable, 

it is when a Rule 403 analysis of a trial 

court is reviewed by an appellate tribunal. 

United States v. Long, 574 F.2d at 767; see also Eufrasio, 935 

F.2d at 572. As the Seventh Circuit aptly wrote in a case quite 

similar to this one: 

 The balancing of probative value and prejudicial 

effect, like other comparisons of intangibles, requires 

an exercise of judgment rather than a computation. 

Only in an extreme case are appellate judges competent 

to second-guess the judgment of the person on the spot, 

the trial judge. 

Sims v. Mulcahy, 902 F.2d 524, 531 (7th Cir.), cert. denied, 
498 U.S. 897 (1990) (citation omitted). 

 

 Applying an abuse-of-discretion standard, I think that 

the trial judge's ruling in this case must be sustained. I 

recognize that evidence that the plaintiff was subjected to 

racial harassment or a racially hostile atmosphere at Eddystone 

has some probative value for the purpose of showing that PECO's 

reliance on plaintiff's poor evaluation while at Eddystone was 

pretextual. If the plaintiff was harassed at Eddystone, that 

harassment might have caused or contributed to his poor 

performance rating. Thus, evidence of harassment at Eddystone is 

relevant to show that the plaintiff's performance rating for that 

period was inaccurate. The plaintiff's poor rating at Eddystone 

was cited as a reason for PECO's denial of the plaintiff's 

requests for promotion to positions as a Labor Relations 

Specialist and to an engineering position. If the officials who 

made the decisions concerning these promotions knew or believed 

that the Eddystone evaluation had been affected by the harassment 

and was therefore inaccurate, that would tend to show that their 

reliance on this rating was pretextual. Consequently, proof of 

the plaintiff's harassment at Eddystone could form part of a 

chain of reasoning leading to the inference that the PECO 

decisionmakers discriminated or retaliated against the plaintiff. 

 But while the evidence of harassment at Eddystone that 

the plaintiff was precluded from introducing thus has some 

probative value, its probative value is limited. First, with 
respect to the positions as a Labor Relations Representative, 

PECO did not rely heavily on the plaintiff's performance at 

Eddystone as an explanation for its decisions. The official 

responsible for filling these positions, James Lange, listed 

numerous other reasons why he did not choose the plaintiff. 

Among other things, Lange mentioned: his belief that the 

plaintiff was unable "to function as a change agent" and was 

"wedded to the past way of doing things" (9/25/92 Tr. at 154-56); 

his concern about the plaintiff's "ability to be objective in the 

area of labor relations" (id. at 163); his view that the 

plaintiff was not a "team player" (id. at 163-64); PECO's policy 

of giving preference to candidates from within the same 

department (9/29/92 Tr. at 109); the plaintiff's failure to meet 

educational requirements (id. at 113); and concerns about the 

plaintiff related to "issues like credibility, confidentiality, 

[and] trustworthiness." Id. at 168. Moreover, while Lange 

stated that he had initially been concerned about the plaintiff's 

performance at Eddystone, he added that, when he heard the 

plaintiff's explanation of the reason for his poor rating during 

that period, this explanation "helped alleviate some of the 

concerns." 9/25/92 Tr. at 158. Second, the plaintiff was able 

to bring out some evidence of harassment at Eddystone. His 

attorney elicited testimony that the plaintiff had told Lange 

that he had been a "victim of harassment" and had "experience[d] 

problems." Id. at 158-59. Third, it seems to me that the 
probative value of evidence of harassment at Eddystone was 

substantially undermined by the plaintiff's unwillingness to 

argue that the PECO decisionmakers who were responsible for 

denying him the promotions at issue believed that the Eddystone 

evaluation was inaccurate. As I previously explained, it appears 

to me that evidence of harassment at Eddystone is relevant 

primarily, if not exclusively, as part of a chain of reasoning 

that includes, as one link in the chain, the conclusion that PECO 

officials cited the Eddystone evaluation as a reason for their 

decisions even though they did not actually believe that this 

evaluation was an accurate reflection of the plaintiff's 

abilities. Plaintiff's counsel has argued strenuously, however, 

that she did not want to prove that the PECO decisionmakers lied 

when they gave their reasons for not promoting the plaintiff.12 

Instead, the plaintiff's theory was that these officials were 

guilty of "unconscious forms of pretext."13 Putting aside the 

question of whether, as a matter of law, a plaintiff in a 

disparate treatment case may prevail based on evidence of 

"unconscious" discrimination,14 it seems to me that the 

 

12. "[M]endacity," she stated, "was not in my proof." I think 

that the defense witnesses in this case were telling the truth 

when they [gave the reasons for their decisions]. Oral Argument 

Tr. at 12. 

13. Id. at 53. 

14. Compare International Brotherhood of Teamsters v. United 

States, 431 U.S. 324, 335 n.15 (1977), with David Benjamin 

Oppenheimer, Negligent Discrimination, 141 U. Pa. L. Rev. 899 

(1993). 
plaintiff's reliance on this unconventional theory substantially 

diminished the probative value of the evidence of harassment at 

Eddystone. 

 On the other side of the Rule 403 balance, I think that 

there is substance to PECO's contention that permitting proof of 

the alleged discrimination at Eddystone might have led to a minitrial and caused substantial unfair prejudice. As PECO put it in 

its brief: 

 Had Glass been permitted to prove the events 

which he contends influenced his performance 

evaluations at Eddystone, PECO would have 

been entitled to offer proof (1) that the 

events did not occur as Glass contended; and 

(2) that his performance evaluation would 

have been negative whether or not such events 

occurred. The results would have been trials 

on two collateral issues -- a trial on the 

occurrence vel non of incidents of 

harassment, and a trial concerning the 

effect, if any, of such events on Glass's 

performance during 1984 and 1985. Together, 

these two trials-within-a-trial would have 

been equal in scope and complexity to the 

trial that was actually held. 

Appellee's Br. at 14 (footnotes omitted). Even if PECO's 

estimate of the length and complexity of this "minitrial" is 

exaggerated, I still think that these considerations were 

legitimate and weighed appreciably in favor of exclusion. 

Furthermore, introduction of evidence of harassment at Eddystone 

might well have led the jury to believe that these events were 

part of a pattern of discrimination by PECO and, since even the 

plaintiff did not advance such a claim (see supra, at 4), the 
introduction of this evidence had a potential for causing PECO 

unfair prejudice. 

 In short, there are clearly factors on both sides of 

the Rule 403 balance, and reasonable minds can differ as to 

whether that balance tilts in favor of admission or exclusion of 

the Eddystone evidence. My colleagues obviously believe that the 

balance tilts in favor of admission. Our function, however, is 

not to balance the Rule 403 factors ourselves. Rather, we are 

supposed to afford substantial deference to the balance struck by 

the trial judge and, if that is done, his rulings in this case 

must be sustained. His rulings did not constitute abuses of his 

discretion. They most certainly were not arbitrary or 

irrational. Bhaya, 922 F.2d at 187. And this case is surely not 

one of those "extreme case[s]" in which appellate judges may 

properly "second-guess the judgment" of the trial judge. Sims, 

902 F.2d at 531.15

 Moreover, even if the trial judge's rulings constituted 

abuses of his discretion, those rulings were harmless with 

respect to the positions as Labor Relations Representative. As 

 

15. In addition to concluding that the district court abused its 

discretion under Fed. R. Evid. 403, the majority states that the 

district court's rulings were erroneous for an additional reason, 

viz., because they improperly limited the scope of crossexamination under Fed. R. Evid. 611(b). Maj. typescript at 14. 

This analysis is flawed, in my view, because the district court 

did not rely on Rule 611(b) in excluding the evidence at issue 

and because Rule 611(b) does not prevent a trial judge from 

excluding evidence under Rule 403 during cross-examination. See

United States v. Beechum, 582 F.2d 898, 907 (5th Cir. 1978). 
noted (see pages 11-12 supra), Lange, in discussing those 

positions, provided a long list of other reasons for not 

selecting Glass, and Lange stated in effect that he did not rely 

heavily on Glass's performance at Eddystone. Thus, even if Glass 

had succeeded in showing that Lange's relatively minor reliance 

on the Eddystone evaluation was pretextual, it is "highly 

probable" that the jury's verdict concerning the positions as 

Labor Relations Representative would not have been affected. See

Lippay v. Christos, 996 F.2d 1490, 1500 (3d Cir. 1993); McQueeny 

v. Wilmington Trust Co., 774 F.2d 916, 924 (3d Cir. 1985). 

Accordingly, any erroneous evidentiary rulings made by the 

district court were harmless with respect to those positions. 

 For these reasons, I dissent.